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tv   [untitled]    June 26, 2013 3:00am-3:31am PDT

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the second construct you have to prove is they're likely to be violent in the future. now on the civil side, those both ought to be factual judgments. does the person lack volitional control and does the person, is the person likely to be violent in the future? if, however, we are actually using at least the first construct, not empirically but we're using it normatively. then we are potentially violating two provisions of the constitution. what you're essentially doing is calling upon the fact finder, whether it's the judge or jury, you're calling upon the fact finder to make a judgment about whether the person is mentally abnormal defined as substantial lack of volitional control, but we have never actually operationally defined what lack of volitional control is, so an expert can't come in and testify that this person is a factual matter
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lacks volitional control. what is doing the work? what is doing the work is the fact that the person has based badly b behaved badly in the past. because they didn't control their behavior in the past, they are therefore, likely not able to control their behavior today and tomorrow. but if you use, if you basically define lack of volitional control as past bad acts, then you're back in the realm of essentially punishing them a second time for their original act which by definition is a violation of the clauses. so part of the problem that i see is our inability to define a legal construct that we consider, if you think about it, not too deeply, as a factual concern, but the scientists say, well, i don't understand that as as a factual matter and i can't define or measure it, then the law is just sort of set free to use normative value-based
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considerations in making decisions about civil commitment. >> professor. >> i'm going to add, do this a little bit shorter, i think, which is let's start with a question to everybody in the audience. all right, so if you like chocolate cake, raise your left hand. if you do not like chocolate cake, raise your right hand. all people who like chocolate cake left hand, don't like chocolate cake right hand. all right, hands down. how many people found it difficult to raise your hand by yourself? not very many. great, you made a choice. you thought about it. you decided and you acted. and my concept of what free will is the ability to act consistent with your preferences and desires. just that simple. now how many people here feel like you have control over whether or not you like chocolate cake? raise either hands.
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fewer, right. so there are two different things going on that we often conflate when we talk about free will. one is your predispositions to preferences and desires, ok. that may be impulsivity, that may be violence, that may be anti-social personality disorder, that may be a preference for chocolate cake, a preference for sugar. i did my 23 and me profile. if you don't know what this is, it's a neat genetic thing that you go online, it tells a lot of things about predispositions for entertainment value. it says i need 16 more grams more sugar than the average person per day. you can look at that by looking at my purse. i have a bunch of twizzlers in there which i enjoy. i have control over my preferences and my desires. i do have a choice. do i buy twizzlers? do i buy the super sugary candy, do i eat the chocolate cake. the question in my mind is the disaggregation of these two things. are you compelled based on your
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preferences and desires to act, to raise your hands, to take a gun and fire it, or are you not? it turns out neuroscience helps us answer that question somewhat in that there are a number of studies that try to look at the flexibility of actions. and it finds that you maintain significant flexibility of actions up until the moment you make a choice, a choice to act. we can actually see actions in the brain. we can see you deciding and choosing between actions in the brain. we can see the flexibility of choice that you maintain. now this difference between law and theory as to freedom of action versus freedom of choice, i think it it actually is quite compatible across both if we simply separate what it is we're talking about, a difference between your preferences and desires over which you may not have control versus action choices and in law, we punish you for bad actions, not for bad preferences and desires. so then the question is, how do we take account for preferences and desires that may be outside
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of your control? that may be things like gray matter lighten kent showed us that showed us that people like psychopaths have decreased gray matter in particular regions of their brain. it could be something like the guy who he was talking about out of virginia who had the large tumor in his brain and chose to act on but didn't have control over having the tumor in his brain. how do we take account for that in law? that's, i think, the interesting struggle that neuroscience presents us with, but it doesn't change the issue of free will. in fact, we have just as robust of evidence from neuroscience that supports this concept of action which is what we punish for in law to begin with. >> and, doctor, would you like to comment on that last? >> no. [laughter] >> i would like to raise an issue. theoretically, that may all be true. there is a problem in distinguishing and differentiating those who are
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compelled to act from, based on their desires and those who are not. and so if you can't define and it's not just simply defining in the brain, but it's defining it genetic, environmentally, contextually, you're defining it in terms of time, if you study their brain today but they committed the act six months ago, a year ago or 10 years ago, so the legal question ultimately is not theoretically whether we can distinguish preferences from action, but whether we can identify those either before the fact or after the fact that had that inability to control their actions. >> yeah, but what we do know is that even like the one that kent presented, the pedestriano file out of virginia, that the vast majority of people who have a tumor like that who may have preferences and desires to act on sexual impulses don't. though we may not know in any particular case whether a person is an automoton, usually
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you can. the law has a bright line. it says if you engage in a wongful action, there is a defense called the insanity defense which never works as most of us know because we don't recognize it. should we recognize it, that's an interesting question. should we have a more robust concept of diminished responsibility in light of the understanding that some people have less control over their preferences and desires or should we have better sentencing schemes or get rid of incarceration and come up with different models of trying to deal with punishment once we understand people have wrong selections. i think those are all interesting questions, but is there free will? well, the fact that almost everybody in the audience raised either their right or left hand contemplated it and were quickly able to act and respond. that to me says, yes, there is. now what do we want to do about it? now that we understand that those of us in the audience or up here that like chocolate cake may not have control over it, how do we want to account for that if at all in the criminal justice system? to date, we haven't. in the future, we may wish to.
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>> i agree with that. i think that, first of all, the fact that everybody in the audience could control themselves raising their hands gives me some comfort as i walk out the door, but one of the problems with the disconnect that i was alluding to earlier between how science deals with this question and how lawyers deal with this question is that you actually get a fundamental disconnect between the two systems. so you mentioned that lack of emotional control or lack of ability to control your preferences might lead to insanity, but, in fact, in most jurisdictions as you know, that's not true. after hanky was acquitted under the american law institute test because he could not control his behavior, congress in most state jurisdictions changed the law, got rid of the lack of emotional test, the a.l.i. test and now in most jurisdictions, the nontest requires that you demonstrate that you can't distinguish right from wrong.
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so now we have, and again, the law uses science for the law's own purposes, but what is problematic here is the disconnect. from the criminal side, if you lack emotional control, you go to prison because you can't win under the test because the test doesn't apply. when you walk out of prison and you lack emotional control, you get civilly committed. so what we have is a fundamental disconnect between how we view philosophy of free will and human control on the criminal side versus the civil side and not surprisingly on both sides "the state wins" because on the criminal side you go to prison and on the civil side, you get incarcerated civilly. >> i don't think that's much of a disconnect. i think -- so i agree with you the test has changed. that's not what i'm talking about. if you look at the kind of distribution of behavior, right, if we think the people at the high end of the distribution have perfect control of their impulses and perfect control over acting on
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their preferences. i like chocolate cake but it gives me migraines. i try not to have it because it tends to trigger if. maybe i end up on the normal distribution on the higher end. at this end we have people who have complete lack of control over their impulses. what the law currently does it draws a bright line. it says normatively, as a matter of who we think we should hold responsible, only people who are at this end of the line are going to be held to not be responsible agents, people who we will not held hold accountable for their actions. we deal with that with the insanity defense. do i think that's perfect? no. do we want to shift the line a little bit further over on the normal curve as we understand that a great degree more people have difficulty controlling their impulses or controlling their behavior or being able to act in a manner that is consistent with a higher level desire to act responsibly then maybe a lower level desire to act violently. maybe we want to shift the
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line. right now where society has chosen to draw the line is to be pretty harsh with respect to we will include as people who are agents of responsibility versus nonagents of responsibility. neuroscience could change that. once we understand and have a better understanding of human behavior and we recognize that there is a much finer graduation that we can draw than this bright line, perhaps it will shift the line or start over. it's not all that consistent, inconsistent with the way to do things. >> i think it is inconsistent, so if you want an open debate, we have to open the debate. >> i would like to jump in at some point. >> go ahead. >> we have the two distributions. we have one distribution based on "free will or volitional control" which applies on the civil side and used to apply under the a.l.i. test and now we have a new distribution of being able to distinguish right from wrong. so now we have two completely different distributions that we're drawing that bright line on.
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>> competent versus volitional. we can decide that cognitive isn't sufficient, but it is the basis where we draw the line. sorry. >> ok. so to get back to the science, do you see how the research that you're doing and this imaging and identification of areas in the brain that may be part of primarily psychopathy which we're talking about today, how would that be used in the courtroom? what is your opinion? >> classically individuals who have those trades, the lack of empathy, those traits predict future recidivism. if you're an offender and scored very high on those traits, you have a four to eight times increased risk of reoffending when released if you're an inmate. it is an construct on a future dangerness issue and used in risk assessment. the literature has done, it has helped us to understand that
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there are, that since the brains are very different, they're affectively challenged even, if you will, some attorneys have made the argument that psychopathy is an effective disturbance, mitigation in a death penalty sentencing. i have be asked to testify whether or not psycho paths have affective deficits. absolutely they do. there has been hundreds of years of psychiatric research shows that they do. you have this two prong thing. on the one hand more dangerous if you release them and don't treat them. on the other hand, they're affectively different. there was a very nice article in the "new york times" magazine on mother's day about children who have these emerging traits and how we would develop and understand and treat them. it's a small percentage. my goal is to develop better treatment so they can keep them off that trajectory towards life course persistent problems. >> are you saying that people
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that have the brain structure that you have identified will always be lacking in volitional control or impulse receive to the extent that they are criminals? do we have a subset of people that are criminals because of their brains? >> i should really differentiate psychopathy from criminality. there are a lot of reasons why individuals engage in different criminal activity. it's a very small percentage of prisoners that are just about 15 to 20% depending on security level. those individuals are the ones that present the highest risk for reoffending. those are the ones that we say have the personality disorders, et cetera. actually, there is an amazingly good treatment programs that have been developed especially with youth that can show upwards of a 50% reduction in violent crime in kids with these traits if you put them in the right type of treatment. the state of wisconsin leads the way in this regard, by the way because they have invested heavily in these types of treatment programs. they have showed these dramatic effects.
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that gives me faiths that other states, california and hopefully others will adopt these very progressive and positive reinforcement model kind of treatment programs. and they have the power to reduce impulsivity and increase a little bit of empathy that allows that person when they're released to not act without thinking or to act less likely to act without thinking, and then to also potentially engage in better, general better societyal behaviors. >> you briefly mentioned mitigation and aggravation. professor, can you address the question of how you would use this information either as aggravation or mitigation in a death personality case? do you have any opinions about that? >> a couple observations. first it's worth noting that most jurisdictions, the rules of evidence, whether it's the kelly test in california or the due better rule in federal jurisdictions does not apply at capital sentencing.
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so many of the questions about how valid the research is and how robust it is doesn't necessarily come up because the standards are much lower in capital sentencing. it's a huge question. you could have exactly the same brain scan on the prosecution side as kent pointed out. these are dangerous people. many of them will say straight up, if you let me go, i'm going to do it again and i really can't control myself and that sounds aggravating. on the other side of it, we are to some extent the victims of our preferences or the inability to control our preferences. we are victims of our environments growing up. we are victims of our context that we live in and, therefore, we all, you know, are not "responsible for that behavior and therefore should be
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mitigating." when you look at the testimony that comes in, whether it's from a mother or from neighbors or from teachers that are talking about really mitigating circumstances, they are the rotten social background kind of arguments, the abuse and the suffering that that individual experienced and those things show up in the brain. the brain is also a sponge. the brain isn't simply created by genetics and it's very much shaped by environment. and so my mentor john monaghan likened the problem of predicting violent people to predicting violent storms. when you think of meteorology, you think of the difficulty of classifying a hurricane and tracking a hurricane, making judgments about such complex behavior that has sort of chaotic premises underlying it, you're going to make lots of mistakes. you're going to make lots of mistakes in both directions.
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sometimes you're going to make a mistake when you think the storm is going to hit and it doesn't and sometimes you're going to make mistakes where you think the storm is not going to hit and it does. and i think one of the great challenges, quite frankly, for the legal system, is understanding statistics well enough to make that judgment about where you draw that line that anita was referring to about where do you want to avoid the errors. you want to avoid the errors, a category five hurricane is going to hit miami but there is only a 40% likelihood that that hurricane is going to hit miami, do you evacuate the city? well, if you evacuate the city and it doesn't hit, you spent tons of money and possibly hurt lots of people in doing that. if you don't evacuate the city and the storm hits, then you have many deaths and much lost money. i think it's that statistical judgment that ultimately is the legal judgment that has to be made here and the best science will never get to that point
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where it will say we know with 100% certainty that this person is going to commit another offense or is not going to commit another offense. this is our confidence about that judgment and now you have to work with that in the best way you can. >> when i did the education outreach to federal judges, that's the biggest questions. generally they want to know can you help me do any better than my best clinical judgment? yeah, we can. we can design tests that can predict and they want to know how good can you get? risk assessments are getting better. they're getting a lot better. i look at risk assessments as i have identified the variables that promote risk so that i can develop treatment strategies to reduce those risks. so if you have somebody that scores very high in psychopathy and has all of the other risk factors that would suggest they're is an 80% chance of reoffending in four or five years, you can develop a tiered or strategic relief plan that would help mitigate those risk
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factors so that that person can be -- levels of risk can be brought down. that's how we think about risk management. i call it typically risk needs assessment, because once you understand the risks, then you can develop ways of mediating them and whether or not that's a brain difference or a picture of a scan or whatever it is, your brain changes as you age. i tried to show you that. and that change can be done through a lot of different ways, through education, through learning, through treatment, through talking to people or medicines all have big impacts on how the brain develops and changes over time. >> professor. my view is that this evidence has not been particularly useful either as aggravation or as mitigation. so i have been doing an empirical study over the past six years now to look at, introduction in criminal cases. it's equivocal at best. it sometimes ends up being aggravating, but so far it hasn't panned out. why hasn't it panned out?
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in part because science isn't quite there yet in that we're able to see some things at a group level, but being able to talk bay single individual to look at their brain and to understand the extent to which their brain differences contribute to their behavior is very challenging. there just isn't enough data for that yet. you can say things at a groupwide level, though. and so kent mentioned earlier the case out of florida in the sue presume court graham in which the court said the juvenile should be treated differently with respect to life without the possibility of parole. the same happened in simmons where the court has treated juveniles differently. it may be the case we can start to do that. we can start to categorize people. we categorized a group of individuals in virginia and said those people who have mental retardation have lesser couple ability for a whole host of reasons, they're more likely to follow people. they're more likely to be
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subject to peer pressure, less likely to have made premeditated decision-making. that's probably where this evidence is the most useful. we have a standard in criminal law called the reasonable person standard. this fictitious person that we measure everybody's conduct by. we say this is the person, the average person, the average juror, the average individual, the kind of conduct that we would expect an average member of society to live up to. well, as it turns out that none of us are quite average, right. and we might actually be much more like people who we share particular brain structures with or people who we share particular environmental and brain similarities to. so we might need to start thinking about more particularized notions of conduct based on what we would expect of a person who has that type of brain structure who had these types of environmental factors and then start to think about how we want to treat them. do we want to hold those people responsible for their actions or less responsible for their actions.
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are there certain people who would be better subject to medical treatment instead of incarceration. are there certainly people who we actually think would be better off in prison than not being in prison? those types of decisions, i think, are going to be much more useful coming out of the neuroscience in the near term. in the long term, maybe we can get to the point where we make individualized decision-making, but so far it hasn't actually panned out. >> to all of you, do you think that it would be appropriate to keep this out of the courtroom, for instance, until there is a lot more certainty, or should we be using it now and run the risk that we're reaching potentially wrong conclusions? >> i'll jump in first on that and say it's already here. so the idea that we should wait for the science to get better, i think, is just, it's too late for that. so the cat is already out of the bag. the question is what do you do now that it's in the courtroom. well, we have dualing experts. we have judges sitting in a gate keeping role who have to
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decide whether or not the evidence should be admissible and whether it should be permitted in a case. my view is that the more evidence that we can provide to a scrr or to a judge -- jury or to a judge in their decision makings, some objective evidence, some evidence to bolster things like a diagnosis of schizophrenia or i.q., all the better. at the same time we need the critics in the courtroom explaining the shortcomings of the science so that we don't have false evidence that is introduced or undue reliance on science that isn't quite there yet. my preference is recognize it's already there, but make sure that we have robust discussions about the validity of the science before people buy into it too much. >> yeah, i would just add that i basically agree that it's already in the courtroom. however, i would caution that it's not in the courtroom for all uses. justice breyer in a case which
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was the third of the trilogy which is basically the supreme court weighing in on the admissibility of scientific evidence or expert evidence more generally, justice breyer referred to making sure that the science works for the task at hand. this notion of the task at hand i think ought not to be forgotten. the neuroscience might work for certain tasks very well and for other tasks not so well. so i think we have to evaluate it on a case-by-case basis. i very much agree with anita's point that a lot of the neuroscience right now works quite well at the group level and has not yet been shown to work particularly well at the individual level, but having said that, i think that there is, again, a legal necessity issue that is presented. if you go back to graham versus florida it is true that justice kennedy and the supreme court, the majority of the court said that you cannot impose life without parole for a non manslaughter offense for an add less is sent and therefore, he
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drew the line's did in roeper versus simmons at saying that at less sent are simply different. their brains are different than adults. they're less developmentally mature. what happened to terrence graham? he got sentenced. he didn't get sentenced to life without parole that was now unconstitutional. if you actually read what happened at the sentencing hearing for terrence graham, there was, again, dueling psychologists with a scrist and the state sigh kentucky scrist made the claim he was suffering from anti-personality disorder and in his view, no one recovers from anti-personality disorder and therefore he should be put away virtually for the rest of his life and the defense expert is said there has already been demonstration of his increased maturity and that i do think that he will mature out of it and the brain science supported the defense side of that.
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he got 25 years. that was the sentence. so even though i very much agree as a constitutional matter, we can draw those bright lines at the group level, in the end, just by necessity the law has to deal with individuals. >> would you agree that the judicial system is not really the best place for us to be determining whether or not the science behind neuroscience is reliable enough to make judgments? i mean, looking back at things like fingerprints and other tool marks and other sciences, for ensick sciences that came into court and now have been debunked, isn't there a risk, a huge risk? >> there is. i wish that more lawyers knew statistics and research methods. unfortunately, if you're really good in math, you don't necessarily go to law school. but if you're really good in political science or history, you might go to law school and you haven't taken math for a very long time. i think the reality is that the
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courts have to get up to speed. that was really the lessson of the daubert case and kelly frye as well, the lawyers, judges, the system more generally has to be able to evaluate the validity of proper expert testimony. we can't get around it. it's in the courtroom. the problem with latent fingerprints and firearms and handwriting and arson investigation and the list goes on and on as you know better than i, the problem is those were never actually evaluated. the court simply grandfathered it in or never even bothered to look at it. i can assure you that the forensic sciences, the nond.n.a. stuff is not brain science. it doesn't take a kent to look at the scientific methods underlying a lot of the forensic techniques and say that it's mostly junk. i do think your point is well
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taken that when you get to genetics and you get to neuroscience and get to some of the more complex science, i quite frankly think that law schools need to step up. lawyers and judges need to step up to do a better job of understanding it and that's one of the thing kent does. he goes around lecturing judges on the methodology underlying his neuroscience. >> just one note about -- a lot of the sciences that you mention are sciences that were developed not through order scientific method of driver, but -- discovery but were directed by the criminal justice system, the forensic sciences didn't happen from scientists following hypothesis-driven scientific methods and following the scientific methods. neuroscience and d.n.a. are different that way. interestingly, there is a lot of neuroscience collaborations that are happening with people outside of the neuroscientific field. it is still neuroscientists
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doing the decision-making. the quality of the science is different. >> definitely. >> as a result, the question of its appropriateness in the courtroom and whether or not we think that it's likely to follow the same fate and path that these so-called other sciences are, i think it's more likely to be like d.n.a. than it is to be like the forensic sciences which aren't really science to begin with. so i think we can take a little bit of comfort in having it in the courtroom, but also recognizing there is peer-reviewed literature that followed the scientific method. we can actually evaluate it in the courtroom. i agree with david, in order to do so, we need to increase the training of lawyers and judges and the general public in these fields so that people are critically able to evaluate the type of science that is introduced in the courtroom. >> just very quickly, i agree with everything anita said. the one area that you sort of have to keep your aye on is lie detection. two companies are now in the business of doi